A pitfall in handling interrogatories in Nebraska’s state courts is waiving an objection by answering over it. While Federal Rule of Civil Procedure 33 specifically addresses the issue by providing “[e]ach interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath” in FRCP 33(b)(3) and “[t]he grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause shown, excuses the failure” in FRCP 33(b)(4), the waiver quandary still exists under Nebraska Rule of Discovery § 6-333 as the rule has not been amended to mirror FRCP 33. The pertinent language of § 6-333 provides “[e]ach interrogatory shall be repeated and answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer.”
The obvious contrast is one may answer the unobjectionable portion of an interrogatory under FRCP 33, while the plain language of § 6-333 requires the objection to be provided “in lieu” of an answer. As a result, attempting to answer the unobjectionable portion of an interrogatory in Nebraska’s state courts may result in a waiver of any objection raised in response to the remainder of the interrogatory. This result does seem counter-intuitive, inefficient and lacking in common sense. One would think a carefully crafted response specifically identifying the portion of an interrogatory to which the party is responding, while identifying the portion of the interrogatory the party finds objectionable, would be favored to allow counsel and the trial court to streamline the issue for resolution and allowing discovery to progress. It could also allow the parties to address the issue in a focused manner, potentiallty avoiding the Court’s intervention altogether. However, one should be very cautious in answering over any objection to an interrogatory in Nebraska’s state courts for three reasons. First, the plain language of § 6-333. Second, the Nebraska Supreme Court has not addressed the issue. Third, this author is aware of Nebraska trial judges relying upon authority from other jurisdictions to find counsel has waived an objection by answering over it.